Excerpt:divorce - condonation of ineestuous adultery--cruelty, degree of, necessary to revive condoned adultery--subsequent conduct, without physical violence, causing injury to health. - .....husband. in answer to that petition, the husband denies the incestuous adultery, and charges his wife with adultery (the same acts which form the subject of the second petition), and the answer to the husband's petition is a denial by the wife, and the acts of which she complains in her own petition. therefore the facts in the two petitions are the same, the position only being reversed; the husband being in the one case respondent and in the other case petitioner. the co-respondent to the husband's petition is hugh doherty, who is in business in calcutta.3. it appears from the petition and the evidence that the husband and wife were married on the 31st of october 1901 at the congregational chapel at hastings in this town.4. the parties profess the christian religion.5. after the.....

Judgment:

Fletcher, J.

1. These are two cross-petitions for divorce, which by the consent of the parties were heard together.

2. The first petition presented by the wife, Florence Amelia Thompson, against her husband, George Sprott Thompson, claims a divorce on the ground of incestuous adultery by the husband. In answer to that petition, the husband denies the incestuous adultery, and charges his wife with adultery (the same acts which form the subject of the second petition), and the answer to the husband's petition is a denial by the wife, and the acts of which she complains in her own petition. Therefore the facts in the two petitions are the same, the position only being reversed; the husband being in the one case respondent and in the other case petitioner. The co-respondent to the husband's petition is Hugh Doherty, who is in business in Calcutta.

3. It appears from the petition and the evidence that the husband and wife were married on the 31st of October 1901 at the Congregational Chapel at Hastings in this town.

4. The parties profess the Christian religion.

5. After the marriage the parties first of all lived in a boarding house in 13, Camac Street, and then they removed to 13, Telkul Ghat Road, Howrah, as being nearer the husband's place of work, the husband being employed in an engineering firm at Howrah; and after that they left that residence where they were for two and a half years, and lived in 28, Grand Trunk Road together, until the wife finally left her husband on the 28th of March 1911.

6. There is one child of the marriage, Sylvia Irene, born on the 23rd September 1905.

7. The wife charges in paragraph 4 of the petition 'that on various occasions, in or about November or December 1908, the respondent at 13, Telkul Ghat Road, committed incestuous adultery with Ada Goodwin, the sister of the petitioner, who was then residing with your petitioner.'

8. His Lordship then dealt with the evidence relating to the charge of incestuous adultery against the husband, and continued:

9. I have no doubt that the husband committed incestuous adultery with his sister-in-law.

10. The next question is, has that incestuous adultery been revived by the subsequent conduct of the husband? First of all, it is necessary to decide in what manner condoned adultery is revived, and I refer to the cases cited in the Court of Arches. First there is the case of Durant v. Durant (1825) 1 Hag. Eccl. Rep. 733. There the Dean of the Arches expressed his opinion thus: 'Under these authorities (which he cited) I am inclined to hold: first, that cruelty will revive adultery, and, secondly, that less is necessary to revive than to found an original sentence.' Then there is the case of Bramwell v. Bramwell (1831) 3 Hag. Eccl. Rep. 618. That was decided by a very distinguished Judge, Dr. Lushington. He followed the opinion that has been expressed by Sir John Nichols, Dean of the Arches, in Dowden v. Dowden. That was also followed in two other cases, the first one of which is Cooke v. Cooke (1863) 3 Sw. & Tr. 126. After the constitution of the Royal Court for matrimonial cases, when the Ecclesiastical Jurisdiction had been taken away, a Judge in that Court (I think it was Sir John Wilde) also adopted the opinion which has been expressed in those other cases. It has been followed also by the late President of the Probate and Divorce Division, Lord Hannen, in the case of Ridgway v. Ridgway (1881) 29 W.R. (Eng.) 612. So one must apply one's mind to this case having regard to the, authorities that have been cited.

11. His Lordship then dealt with the evidence relating to the charge of adultery against the wife, and continued as follows:

12. The husband has failed to establish that the wife and co-respondent committed adultery.

13. The question is, has the incestuous adultery, which the wife condoned certainly on the 1st January 1909, been restored by the subsequent conduct of the husband?

14. I am satisfied that the husband in this case, as Mrs. Keble said, only spoke to his wife on household matters. That obviously was not the terms on which the wife forgave the husband. The wife forgave the husband on the footing that if she came back to him, he should conduct himself in a manner in which a husband should conduct himself, not that the wife should be spoken to only on household matters, and that she should be treated with what has been called in the case 'silent indifference.'

15. The evidence in this case shows that the wife's health has suffered.

16. I do not agree with the statement as to why marital intercourse ceased, namely, that the ayah told the husband something. I think it is much more probable that the husband had during his absence from his wife acquired vicious habits. That a man should during this long period, even admitting the absence of the wife during the hot weather in Darjeeling, sleep alongside a young wife without resuming marital intercourse is very unusual, and that the husband satisfied his passions in other ways is very probable. Apart from the fact that the husband gave way to disgusting habits, it is a fact that the wife's health suffered in consequence of the husband's treatment.

17. In my opinion the wife has established in this case that her health suffered by the conduct of the husband after she condoned his incestuous adultery, and the result of that is that the incestuous adultery has been revived, and therefore the wife is entitled to a decree.

18. On the wife's petition, I grant a decree nisi with the usual order for costs, including ail reserved costs, and the husband's petition is dismissed with costs against the respondent and co-respondent. The wife to have custody of the child.